Waake Anthony John Davies v Dove Hawkes Bay Incorporated

• Jurisdiction: New Zealand
• Judge: G L Colgan
• Judgment Date: 17 May 2013
• Court: Employment Court
• Docket Number: WRC 34/12
• Date: 17 May 2013

In the Matter of a challenge to a determination of the Employment Relations Authority

Between

Waake Anthony John Davies

Plaintiff

and

Dove Hawkes Bay Incorporated

Defendant

[2013] NZEmpC 83

WRC 34/12

IN THE EMPLOYMENT COURT WELLINGTON

Challenge to Employment Relations Authority determination that the plaintiff was not entitled to have his personal grievance for unjustified dismissal determined on its merits — plaintiff failed to raise his grievance within 90 days of being dismissed — letter raising the grievance was sent either one or two days out of time — preliminary evidence issue — less evidence was placed before the Employment Court (“EC”) than was before the Authority — whether as the hearing was de novo, the EC could only consider the evidence actually before it and ignore the Authority's conclusion — whether the plaintiff had made reasonable attempts to raise his grievance under s115(1)(b) ERA.

Appearances:

Piers Hunt, advocate for plaintiff

Stuart Webster, counsel for defendant

ORAL JUDGMENT OF CHIEF JUDGE G L Colgan

1 The sole issue for decision in this challenge by hearing de novo to a determination 1 of the Employment Relations Authority is whether Waake Davies should be able to have the Employment Relations Authority determine his personal grievance (unjustified dismissal) on its merits. It is agreed that Mr Davies did not raise that grievance with his former employer (Dove) within 90 days of being dismissed on or about 15 September 2011. He was either one or two days out of time in doing so. Dove did not consent to the Authority considering the grievance on its merits.

2 In these circumstances Mr Davies applied to the Authority under ss 114(4) and 115 of the Employment Relations Act 2000 (the Act). Mr Davies had

to satisfy the Authority that the delay in raising his personal grievance was occasioned by exceptional circumstances and, if so, that it was just to grant him leave. Mr Davies relied on one of the exceptional circumstances set out for this purpose in s 115(b) of the Act. That is “where the employee made reasonable arrangements to have the grievance raised on his or her behalf by an agent of the employee, and the agent unreasonably failed to ensure that the grievance was raised within the required time.” The Authority considered that Mr Davies had not made reasonable arrangements to have his grievance raised and so refused leave

3 Mr Webster for the defendant has raised a preliminary point about the evidence before this Court. There is some, but not as much as was considered by the Authority. Counsel submits that because this is a challenge by hearing de novo, the Court can only consider the evidence actually before it and must ignore even the Authority's uncontested but relevant factual conclusion.

4 That is however, not the effect of s 179 of the Act. It provides that a hearing de novo is a hearing of all of the issues that were considered by the Authority. Section 179 does not dictate, or even mention, what evidence or material the Court can consider on the challenge. Section 189(2) governs the position of evidence and I take the view that in a case such as this, it is open to the Court to rely not only on evidence adduced before it, but also on the Employment Relations Authority's findings where these are not contradicted by other evidence.

5 Just as the court in what is called a non-de novo hearing under s 179 may receive evidence on such a challenge, so too I consider that a party on a de novo challenge such as this is entitled to rely on the Authority's findings where they are not challenged by evidence before this Court. So the following account of relevant facts is taken from both affidavit evidence before me and the uncontradicted findings of fact in the Authority.

6 The relevant events affecting this question are as follows. Dove is a social work services agency focusing especially on domestic violence. Mr Davies was employed by it as a social worker. He claims that he was dismissed when he refused to cease living with a woman whose children attended the school to which he was attached as a social worker. He was consequentially dismissed on 15 September 2011.

7 Ten days or so later, on 25 September 2011, Mr Davies consulted a barrister, Sacha Beacham. This was about two matters, the situation of his separation from his wife, and the circumstances of his employment and dismissal. Those matters were, as outlined above, inter-related. As to the latter, he was both concerned about his holiday pay entitlements and also considered that he had been dismissed, as he then said “wrongly”, and wanted to know what he might do about that.

8 On 6 October 2011 Ms Beacham wrote to Dove on Mr Davies's behalf, saying that she was considering his options following his dismissal. She sought, as the statute required Dove to give in these circumstances, a written statement of the reasons for his dismissal and other employment documentation.

9 Dove responded to Ms Beacham by letter dated 8 October 2011 (received on 8 October 2011) that appears to have enclosed copies of time and wage records and of Dove's letters to Mr Davies of 5, 8 and 15 September 2011, setting out the reasons for his dismissal.

10 Ms Beacham prepared a draft letter raising Mr Davies's grievance but did not contact him about this or take any other step to raise his grievance.

11 On 14 December 2011 Mr Davies, conscious of the 90 day period which was about to expire, sent a text message to Ms Beacham inquiring if “the Dove case [is] due shortly”. This prompted a rapid meeting with Ms Beacham at her office later that day at which she took Mr Davies through the draft personal grievance letter and received his instructions to send it to Dove. The letter was received by Dove on 16 December 2011, either one or two days out of time. The letter raised three personal grievances.

12 Although this letter was marked “Without prejudice except as to costs”, there was no offer of settlement contained in it and it was not, and did not include, an offer that was without prejudice. Rather, it simply raised Mr Davies's grievances.

13 The Authority made strong findings against Mr Davies. At [16] of its determination it wrote:

In its most liberal interpretation, Mr Davies' and Ms Beacham's position does not reflect that Mr Davies made reasonable arrangements to have the grievance raised. He cannot just rely on referring to the word his “case”. That is not enough to support that he made reasonable arrangements because he wanted to sort out his family matters first and Ms Beacham needed to find out information and to make sense of what had happened. The fact that Ms Beacham did not further contact him earlier is beside the point. It is self-evident that Mr Davies had not provided a clear request to have his personal grievance raised until 15 December when he had a session with Ms Beacham in regard to the grounds and claims available just before the 90 day period ended. He has to take responsibility, not the agent. There was no clear indication before their session that a personal grievance would be raised. Therefore he left it too late when he contacted Ms Beacham about his case.

…

The reason for the delay clearly related to Mr Davies returning to Ms Beacham in regard to his wish for her to make sense of the situation and him wanting to know if he was being ripped off in regard to his holiday pay. The fact that he left it so long meant that he did not leave Ms Beacham time to raise the grievance in the 90 days and she could not raise it in the remaining time available. This can not be construed to mean that she unreasonably failed to ensure that the grievance was raised in 90 days.

14 Ms Beacham both represented Mr Davies as counsel and provided evidence to the Authority of her role in these events. Unsurprisingly, perhaps, Mr Davies is no longer represented by Ms Beacham although the Court has, for consideration, her affidavit made in the Authority proceedings and in which she frankly conceded her errors and her responsibility for the grievance not being raised in time.

15 Sections 114 and 115 require the Court (and the Authority) to consider two separate, albeit related, questions in the following sequence. The first question is whether the delay in raising the personal grievance was occasioned by exceptional circumstances. Within that first category, there are also two separate but related questions for sequential decision by the Court when a plaintiff such as Mr Davies relies on s 115(b). Those are, first, whether Mr Davies made reasonable arrangements to have his grievance raised on his behalf by his agent. The second sub-category question is whether, if so, his agent failed unreasonably to ensure that the grievance was raised within the required time. It is only if both of the first preliminary questions are satisfied and, therefore, that the delay was occasioned by exceptional circumstances, that the Court can go on to consider whether, in those exceptional circumstances, it is just to grant leave to raise the grievance out of time.

Case law on ss 114 and 115

16 Judgments of the Court of Appeal (and Supreme Court) in employment cases are, of course, binding on this Court. It is, therefore, important to analyse the nature and effect of the judgments of the Court of Appeal in Melville v Air New Zealand Ltd 2 to determine how they affect decisions in this case under ss 114 and 115 of the Act.

17 Melville, at first instance, 3 was a case in which a grievant's agent (a union) failed to raise the grievance within the statutory 90 day period. The grievant reminded the agent on several occasions of the need to raise her grievance within time. There was also evidence that the agent had begun to prepare a statement of problem (the document initiating grievance proceedings in the Employment Relations Authority) but it transpired that there had not been any...